In the matter: Chirwa v Transnet Ltd (Ref: 2009 (4) BALR 350) a dismissal was found to be “procedurally” unfair due to the bias of the presiding officer (Chairperson).
The reason for this finding included;
• Employer attempt to dismiss the accused (employee) regardless of consequences.
• Employer assigned the role of chairperson (presiding officer) to an untrained and inexperience employee.
• The employer lacked understanding of what constitutes “bias”.
• That the bias of the chairperson included previous evidence of conflict with the accused.
• Had prior knowledge of the case details.
• Finding were not based on “facts”.
The new guidelines insist on;
• Proof of evidence of all allegations.
• Chairperson’s outcome must clearly demonstrate evidence and fairness when conducting a disciplinary hearing
The employer must therefore, in terms of the new CCMA Guidelines, demonstrate clearly that;
1) The presiding official (chairperson) has had no involvement or knowledge of the case, prior to the hearing,
2) The chairperson must have a good understanding of what also constitutes “bias”.
3) The chairperson must be impartial, qualified and knowledge of how to carry out the task.
The matter: FAWU obo Sotyato v J. H. Group Retail Trust (Ref: 2001, 8 BALR 864) also supports the new CCMA guidelines in terms of the importance of the chairperson’s role and that disciplinary hearings are as requirement for outcomes concerning Final Written Warnings or more serious outcomes.
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(Chairperson – (CEA – LBD))